Wednesday, January 31, 2007

A New Front in the Battle for Fetal Personhood

Given the many ways in which abortion opponents are trying to have fetuses recognized as legal persons with rights, Houston's enforcement of HOV lanes may provide another place to demand that the unborn be equal with the born:

Prof. Kerr, as ever both more generous and more intelligent than I (my first thought on seeing the title was What a wankfest), called the article "interesting," but critiques the part of it that generated my unkind reaction -- the influence of the Harvard chapter of the Federalist Society -- as "mere speculation. And it seems like pretty unpersuasive speculation."

Also, frankly, who cares? Columbia has had a fairly active Fed Soc during my time here, mostly thanks to Blaine Evanson '06, but I've witnessed conservatives and libertarians voicing their diverse viewpoints so seldom during class that I've been driven to bringing up arguments with which I don't agree just to get the prof's take. And as the author of Broken Contract sorrowfully describes, most self-identified liberals at elite law schools will be working for large law firms, on behalf of massive corporations, not for the ACLU. Indeed, the liberal-friendly pro bono work taken by most firms is partly an attempt to make these students feel better about selling out -- Sure, my firm defends polluters, but we also are trying to get habeas for an alleged terrorist! Hicks (also probably more intelligent than I) is almost wholly focused on social political preferences and ignores the difference between liberalism and leftism, using the terms interchangeably even when the source of a quote, such as The Economist, probably does distinguish between the two. Same-sex marriage is a winner, but you might not get a majority of Ivy League students to agree even to such a basic "leftist" idea as that government should be in charge of providing health care. And Jonah Goldberg's signed on to that one as preferable to the current schizophrenic system.

Federalism Is Not a Cure-All

At the Columbia ACS blog, "Hey Abbott" writes a post titled, "In Defense of the Second Amendment" that advocates federalism in gun legislation on some of the usual grounds: 1) One Size Does Not Fit All States; 2) Fairness (which really is the same as the first rationale); 3) Guns as the Whipping Boy of the Left; 4) The State Solution: Experimentation.

But Abbott isn't defending the 2nd Amendment. S/he is ignoring it. Saying that DC should be free to ban arms because of the crime situation nullifies the individualist interpretation of the 2nd Amendment -- if I have a right, that right exists even when it's inconvenient, as speech and criminal rights often are. I doubt that Abbott would consider applying federalism to the 1st or 5th Amendments; we're not going to let states "experiment" with mandatory prayer or the Miranda warning. I'm not even sure DC would permit a collectivist interpretation of the 2nd Amendment, for example allowing a militia to form and store arms for use in an uprising against tyranny/ invasion.

I lean collectivist myself (1, 2), and find the hunting and personal self-defense rationales of the NRA wholly irrelevant to the 2nd Amendment no matter how practical they are. But I don't think advocating that gun policy to be determined at the local level, without setting some floor of what the 2nd Amendment does require, can be called "defending" it.

Federalism may be a good structural idea, but it's an appalling way to maintain our rights -- it's often easier to collect a majority in a single state to oppress a minority than it is to collect that same majority nationwide. Compare the success of state constitutional amendments banning same-sex marriage with the failure of the Federal Marriage Amendment. If I were the type to hang out at ranges and to display pictures of myself with gun in hand, I would be happy with the federalization of the 2nd Amendment, as long as it was done by the judiciary upholding my rights, like the 5th Circuit in dicta. The recently expired "Assault Weapons" ban was controversial partly because of its sheer silliness. Instead of focusing solely on the ease with which a gun could shoot many people (features like automatization and magazine capacity), it worried about the stock and pistol grip, and whether there was a grenade launcher [1] or bayonet mount. But federal gun legislation dates back to at least 1934, and though the National Firearm Act's regulation of fully automatic weapons was challenged at the time in U.S. v. Miller, it doesn't seem to be much of a rallying cry nowadays.

Incidentally, Hey Abbott's citation of the Wisconsin hunter who killed six others left out a fact that might be relevant to the attempt to identify factors that have increased mortal violence: quite likely, "increased social competition, stress in the workplace, urbanization, rapid growth, and the destruction of our social safety net have prompted our violence crisis," but another possible element is the diversification of American society. The Wisconsin hunter in question was Hmong Laotian, one of the less "model minority" Asian groups in the U.S. whose large-scale immigration after the Vietnam War was forced by their cooperation with the U.S. in Southeast Asia, and subsequent targeting by Communists [2]. The 2004 killing has been considered as a cause of the recent murder of a Hmong man by a white hunter. Hey Abbott appears to be most concerned with people going "berserk," committing "atrocities" and "countless school and workplace shootings," rather than the commonplace gun murders connected with sex, drugs and money that I would bet make up a far higher proportion of gun violence.

[1] Hint to Congress: ban the grenades.

[2] Much of the "model minority" myth about Asians stems from immigration cherrypicking. Unless it was feeling guilty about the possible genocide of a group it had used and then abandoned in foreign policy (and you can't give everyone a no-fly zone!), the U.S. government was quite selective about the Asians who were permitted to immigrate, often requiring that they already speak English, be well-educated and have skills of which America was in need. There's a reason that a disproportionate number of South Asian-Americans are doctors and engineers -- the subsistence farmers rarely got visas.

Thursday, January 25, 2007

ACS v. FedSoc

Yesterday, the Federalist Society's left-leaning counterpart, the American Constitutional Society, announced on its blog the beginning of some collaborative debate and discussion between FedSoc and ACS members. Realizing the problems of collective participation (not to mention Borking), ACS members acquiesced and admitted that competition might be a better engine of intellectual growth than the previous system of coercion, dubbed "voluntary participation."

Rob, of ACS, writes:

While we often find ourselves on the receiving end of one another’s diatribes, ACS and FedSoc are really engaged in a common enterprise.The intellectual and professional tension fueled by deeply differing philosophical emphases holds the entire legal community upright as wires on a suspension bridge.

With that amiable stance in mind, the Federalist Society and AmericanConstitutionSocietyColumbiaLawSchool chapters embark upon a semester of high spirited and high minded debate.Through cross-links on our organizations’ blogs, an ongoing discussion will unfold among students at CLS and any interested in contributing.The media representatives from both groups will attempt to kindle debate, though we intend the conversation to be organically driven by the ideas shared online. Our chosen profession is defined by argument: civil, reasoned, and inspired.We expect nothing less.

Let me simply close, by pointing out that my ideas do NOT stand for all of the Federalist Society's members. I say so in order to emphasize that this enterprise is intended to promote a free market of ideas where individual ideas are emphasized over any imagined duty to remain consistent with one's party affiliation.Of course, this indirectly coincides with one of the core beliefs associated with the Federalist Society: the idea that competition brings out the best results in the participants.Hopefully this friendly competition will inspire some good, civil discussion, as a reason to think critically and practice your advocacy in an open environment. So, members of FedSoc and ACS, you now have your chance to share the pearls of your keen Ivy-league intellects, and earn your side some fleeting internet glory (and if you're actually worried about the paper trail, that's fixable).

Monday, January 22, 2007

Blog for Choice: Abandonment of Federalism in the Face of Roe

Last November, when Sen. John McCain (R-AZ) declared on This Week that he favored a constitutional amendment to ban abortion, but also thought Roe v. Wade should be overturned so the issue could be returned to the states, it was only the most overtly inconsistent statement of how conservative politicians deal with two opposing forces. On one hand, constituents and the Republican base want to see as much as possible done to make abortion unobtainable, so voting for federal abortion laws like the "partial birth" ban and federal constitutional amendments to prohibit abortion is necessary to appease those for whom abortion is an appalling moral evil that must be stopped in any way possible. On the other hand, the best neutral justification for overturning Roe v. Wade -- that advanced by Justice Scalia and other sophisticated conservatives -- is that it federalizes an issue that traditionally belongs to the states.

Nor is abortion an area where federal law occupies the field and the dormant commerce clause or any other constitutional provision would prevent states from regulating. Within the bounds of the Roe/ Casey line of cases, I can think of little that the federal government can legislate for the nation that state governments cannot legislate within their own borders. Possibly with the FDA having approved RU-486, an individual state cannot ban its importation without interfering in interstate commerce. But this is a relatively new technological change; the fundamental aspects of abortion regulation that are judged on whether they are "undue burdens" are essentially the province of the states. Indeed, the states were banning the dilation-and-extraction abortion procedure long before the federal government did, and it is the Supreme Court's precedent of striking down those bans that makes the federal one a failure on stare decisis.

So can congressmen and women who vote for federal abortion regulation be regarded as true federalists?

I suppose they can say that abortion, like racial discrimination, is a sufficient evil that even federalism must make an exception for it; just as some states would not have banned discrimination, some will not ban or heavily regulate abortion, and so the expansive commerce clause powers embodied in the Civil Rights Act of 1964, or the Partial Birth Abortion ban, are justified consequentially.

Such a statement, however, does commit the conservative politician to a somewhat radical position. Racial discrimination is generally understood to be an evil nowadays, to the point that Republicans can adopt the Rev. Martin Luther King's rhetoric to argue that the race-consciousness of affirmative action is a violation of his dream that children "not be judged by the color of their skin but by the content of their character." And opponents of legal abortion have attempted to tie Roe's assumption of Constitutional non-personhood for fetuses, to Dred Scott's now-reviled decision that descent from slaves condemns African Americans to permanent Constitutional non-personhood. (Though recognizing fetuses as legal persons would fly in the face of tradition.)

But the moderate speech by most national politicians -- like Bush's remark that "Good people disagree on this issue" -- on abortion means that comparing support for legal abortion to support for racial discrimination is not viable, as long as even a narrow majority of Americans hold the former position and would be outraged by the implication that they support the latter. So the audience before which McCain and others can plead their federalist bona fides is likely to be relatively small: one that sees legal abortion as so terrible that it must be stopped even at the cost of stepping on state prerogatives. At least racial discrimination could be reasonably said to interfere with interstate commerce. If people of color could not be certain that any Birmingham hotel would let them sleep there when they traveled on business, this falls more clearly within the federal government's power to regulate than the physician-in-or-affecting-interstate-commerce basis of banning a particular abortion procedure (particularly when the same physician will perform a potentially less safe alternative procedure).

Ultimately, federalism is a relatively minority concern (alas, not a "discrete and insular minority"!), and one that is more likely to be used instrumentally in political debate than regarded as an end in itself.

Tuesday, January 16, 2007

O'Scannlain on Circuit-Splitting and Salaries

Ninth Circuit judge Diarmuid Fionntain O'Scannlain spoke to a small group of Columbia Law students last Friday at lunch. He gave some prepared remarks about the history of judicial independence, but his response to a question about some contemporary claimed attacks on that independence were of particular interest.

A perennial hot topic for any Ninth Circuit judge is the question of whether the circuit should be split. The two arguments -- one bad, one good -- for such a split can be encapsulated in a single George F. Will column [1]. Will began, "There should be two Supreme Courts, one to reverse the U.S. Court of Appeals for the 9th Circuit, the other to hear all other cases. Last term, 18 of the court's 82 cases (22 percent) came from the liberal 9th Circuit, based in San Francisco, and the 9th was reversed in 15 of the 18." The bad argument is that because a given circuit is prone to being reversed -- and in particular, on decisions viewed as "liberal" -- it therefore ought to be split so as to lessen its power. The good argument is that because a single circuit now covers 20% of the U.S. population, it therefore ought to be split so as to lessen its burden.

Judge O'Scannlain spoke strongly in favor of treating the circuit-splitting question in purely administrative terms, as past creations of new circuits have been, and against using a split as a means to alter the judges' decision making. Unlike some of his brethren, he appears to favor splitting the circuit, at least in theory, but considers the question of how to split it to be a difficult one. The proposal he discussed would put California and Hawaii in one circuit and the other states in another, a division that he said Hawaii likely would protest due to its being dominated by California.

To my mind, the more obvious division would be a circuit just for California -- which in itself comprises 12% of the U.S. citizens population -- and another for the rest of the current 9th. Naturally this still wouldn't entirely fix the political aspect, and the "crazy liberal Californian" rhetoric would continue, but it strikes me as the easiest solution from an administrative viewpoint. There would be no confusion as to which circuit cases from the California Supreme Court were to go (as there would be if the state were divided), and it would make a tidy halving of the circuit's population.

With regard to judicial salaries, an issue recently declared by Chief Justice John Roberts to have "now reached the level of a constitutional crisis that threatens to undermine the strength and independence of the federal judiciary," Judge O'Scannlain joined most commentators in deeming Roberts's declaration of emergency to be an overstatement. At the same time, O'Scannlain wryly acknowledged that he has a vested interest in higher compensation for federal judges, and pointed out that with $145K salary, plus signing and clerkship bonuses, his clerks make more money in their first year at a law firm than he does as an appellate judge. Judge O'Scannlain emphasized that increases in judicial salaries should be made without reference to politics, and that compensation should not be tied in some way to political perception of judges' performance.

I agree that salaries should not be politicized, but I think these comparisons to the private sector are inappropriate. Government work simply is different, just as industries within the private sector are different. (As much as Christmas bonuses at the major New York firms were appreciated, they inevitably paled in comparison to the Goldman Sachs windfall.) Judicial salaries should be on par with those of the other branches of government, and it is the failure to keep salaries ahead of increased cost of living that I find most troubling. Other civil servants can expect that their real wages will remain at least constant, not downgraded by inflation, and judges ought to get at least that much. Federal district judges are paid the same as senators and representatives, but the Washington revolving door ensures that former Congressmen can build healthy nest eggs as lobbyists, whereas the social capital accumulated as a judge goes unspent if the judge does not join those who leave the bench before retirement age.

The best comparison Roberts makes is between law professors and judges, as one could consider them to be working at similar levels of difficulty; the judges making law in real life, the professors making it in their own heads, etc. The 21st century law school dean -- like the modern university presidents -- functions far more as a fundraiser than as an intellectual and comparing his salary to a judge's is somewhat unfair. Judges need not hustle for money, gladhand potential donors nor please the various constituencies of faculty, students and alumni. In their happy disregard for what others think, federal judges with lifelong appointments are much more like tenured professors. Many professors would love to become appellate judges, even at a lower salary, in order to exercise the power it grants (trial judgeships probably are less inviting). Some federal judges supplement their salaries in one of the few ways permitted after the 1989 Ethics Reform Act: as teachersinlawschools.

[1] Of course, the Ninth Circuit is a favorite whipping boy for Will, as it is for many conservative commentators; less than a month after the above-quoted gibe, he again criticized it.

The reliably unreliable U.S. Court of Appeals for the 9th Circuit -- often reversed but never in doubt -- predictably ruled, with interesting indifference to pertinent Supreme Court precedents, against the parents. Soon -- oral arguments are tomorrow -- the Supreme Court can remind the 9th Circuit of the Constitution's limits on what schools can do in the name of "diversity."

"The Courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequences would be the substitution of their pleasure for that of the legislative body."